What are the penalties for illegal aliens found in possession of firearms in the US?
Executive summary
Federal law generally makes it a crime for aliens who are unlawfully present in the United States to possess firearms that have moved in or affected interstate commerce, and convictions can carry federal prison time and immigration consequences including deportation [1] [2] [3]. State statutes add separate penalties in some jurisdictions and courts are actively litigating constitutional challenges to these federal prohibitions, producing divergent rulings [4] [5] [6].
1. The basic federal prohibition and its statutory footprint
Under 18 U.S.C. § 922(g)(A), it is unlawful for a person who is “illegally or unlawfully in the United States” to possess a firearm or ammunition that has moved in or affected interstate commerce, a longstanding federal bar rooted in the Gun Control Act framework and implemented by the ATF and federal prosecutors [1] [7]. The National Instant Criminal Background Check system (NICS) is required to make records relevant to whether an individual is prohibited because of unlawful presence available to federal authorities, reflecting a policy link between immigration status and firearms checks [2].
2. Criminal penalties: prison terms and sentencing examples
Federal punishments for firearms offenses can be substantial and vary by statute and circumstances; Justice Department reference material catalogues multiple federal firearm offenses with penalties that include multi-year prison terms depending on the provision charged [1]. Real-world federal sentences for illegal‑alien firearms convictions show variability: one ICE announcement described a 21‑month federal sentence in a south Texas case (Emilio Padilla) [8], while a 2026 IRS/DOJ notice described a defendant who received 3 years and 10 months for conspiracy plus illegal‑alien firearm possession [9]. Legal summaries note that felony exposure under federal firearms statutes has historically included sentences of up to 10 years for certain provisions, though the exact statutory maximum depends on the specific charge and enhancements [1] [10].
3. Immigration consequences and collateral effects
Beyond incarceration, a firearms conviction can trigger serious immigration consequences: convictions under §922 and related state firearms laws can be treated as aggravated felonies or deportable offenses under immigration law, and courts and immigrant‑defense advocates warn that even misdemeanor firearms convictions can carry removal or bars to relief depending on statutory details [3]. Government press releases in prosecutions of noncitizens routinely note that defendants “are expected to face deportation proceedings” after criminal sentences, underscoring the dual criminal‑immigration impact [8].
4. State laws and separate state criminal exposure
Several states have independent statutes restricting firearm possession by noncitizens; for example Washington’s Revised Code makes it a class C felony for noncitizens to carry or possess a firearm unless they meet narrow exceptions such as lawful permanent resident status or an alien firearm license [4]. State penalties therefore can layer on top of federal exposure and vary in severity, creating a patchwork of potential criminal liability for noncitizens depending on location [11] [4].
5. Constitutional litigation, circuit splits, and the uncertain landscape
Courts are actively contesting how the Second and Fifth Amendments apply to unlawfully present aliens: a Northern District of Illinois judge dismissed charges in one case, applying individualized assessment principles and finding the statute unconstitutional as applied to that defendant (U.S. v. Carbajal‑Flores) [5] [12], while other circuits, including the Fifth Circuit, have affirmed that unlawfully present aliens do not enjoy Second Amendment protection for firearm possession and upheld convictions [6]. Academic commentary highlights an unresolved doctrinal split and predicts further appeals that could produce Supreme Court review, meaning the scope of criminal liability and constitutional protection remains contested [13].
6. Exceptions, ATF guidance, and practical notes for noncitizens
Federal regulations and ATF guidance identify narrow exceptions for certain nonimmigrant aliens—such as those admitted for hunting or sporting purposes with appropriate permits or specific official representatives—while emphasizing the general prohibition for nonimmigrant and unlawfully present aliens [14] [15]. Defense claims commonly assert self‑defense or lack of guilty knowledge, and courts sometimes factor those specifics into sentencing or constitutional analysis, but outcomes track case facts, statutory text, and evolving judicial precedent [5] [13].